The Department of Justice’s weekend release of documents related to the FBI’s investigation of Trump campaign adviser Carter Page has rekindled a controversy that had been dormant for months—the bitter dispute between House Intelligence Committee chairman Devin Nunes and ranking Democrat Adam Schiff over their dueling so-called “memos.”
The memos had been the distillation of the argument over whether the FBI and Department of Justice legitimately sought permission to bring onetime Trump campaign advisor Carter Page under electronic surveillance. The permission was secured through warrant applications with the Foreign Intelligence Surveillance Court. A series of footnotes in the FISA application can give us insight into the debate over those memos.
The FISA applications—the original and three renewals—run from some 60 to 100 pages, with vast stretches redacted. Their release gives us the opportunity to consider the portion of the application that pertains to Steele (which in each makes up a handful of pages) and review the footnotes in detail, including changes from one application to another.
Let’s start with the majority and minority memos and their competing claims.
Nunes’ staff wrote a January memo (declassified in February) to the committee’s “Majority Members,” asserting there had been “Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation.” The memo begins by noting that on October 21, 2016, the FBI and DoJ went to the Foreign Intelligence Surveillance Court (FISC) to ask for a warrant “authorizing electronic surveillance on Carter Page.” Page had been a foreign policy adviser to the Trump campaign, and Christopher Steele had told the FBI that Page was working with the Russians. The Nunes memo asserts that the government sought the warrant without being fully honest about the source of the allegations against Page.
Some background on Page. He had lived in Russia from 2004-07 while working for Merrill Lynch on the privatization of Gazprom. Amid many redactions, the FISA warrant application recounts that Page had been interviewed by the FBI in 2013 regarding Victor Podobnyy, Evgeny Buryakov, and Igor Sporyshev, three Russians who were later indicted in New York for being agents of the SVR, Russia’s foreign intelligence service. They were accused of trying to recruit Americans to be agents, and they were captured on surveillance tape discussing how to approach Page. According to CNN, Page was also monitored by the FBI under a FISA warrant during that time. (The 2015 indictment against the three Russians stated Page had cooperated with the FBI, and had told FBI agents he had conversations with Podobnyy about energy policy and business in Russia.)
Under the redactions there may be more background information in the FISA applications, such as what Page confirmed over the weekend—that he had at one point been what he calls an “informal adviser” to the Russian government.
In addition to the Steele allegations, the FISA warrant applications also include citations of “open source information” such as that Page went to Moscow in July 2016, where he delivered two speeches.
Were those materials a fair representation of the evidence supporting probable cause? The House majority memo accused the FBI and DoJ, in its warrant applications, of misleading the FISA court by omitting “material and relevant information.” For example, there was the question of Christopher Steele’s credibility, given that he had been hired by Fusion GPS, which had been hired by a law firm representing the Democratic National Committee and the Clinton campaign. “Neither the initial [FISA] application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts,” the Nunes memo states, “even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.”
Meanwhile, the minority memo accused Nunes of “distortions and misrepresentations that are contradicted by the underlying classified documents.” Under the heading, “DOJ was transparent with Court about Steele’s sourcing” the minority memo quotes the FISA application as reading “The identified U.S. Person [Glenn Simpson] never advised Source #1 [Christopher Steele] as to the motivation behind the research into Candidate #1’s [Donald Trump’s] ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.” Never mind that this text was squirreled away in a FISA application footnote, at least it was there.
The newly released FISA documents show that Nunes and Schiff were both right: Justice and the FBI never mentioned that Steele was working for someone who had partisan reasons to dig up dirt on Trump. But the government did allow that there was someone in the mix who wanted to discredit the Trump campaign. Which gives the old argument new life: Schiff partisans can renew their assertion that the majority memo was an exercise in hype over substance; Nunes partisans can point again to the low comedy of such assertions as “The FBI speculates…”
But why rely on the partisans to fight it out? It’s now possible to move toward our own conclusions by reading the actual FISA applications—though it helps to have other documents handy for comparison. For example, turn to pages 77 and 78 of Glenn Simpson’s November 14, 2017 interview with the House Intelligence Committee. Asked about Steele’s initial meeting with the FBI, which had happened in early July 2016, Simpson said Steele “disclosed that he was doing this for a private client, and that he would have disclosed something about who the private client was.” But at that point, according to Simpson, Steele didn’t know the exact identity of the client. “And so initially, at least, he [Steele] would have been only able to say: I have a political client, a Democratic client or something like that, which is what I would have told him.”
So, though Simpson had told Steele it was “a Democratic client” bankrolling their efforts, the FBI and DoJ represented to the FISA court that Simpson “never advised” Steele “as to the motivation behind the research.” Perhaps that footnote was less transparent than Schiff would have us believe.
In the original October 21, 2016 FISA warrant application—signed by both James Comey and Deputy Attorney General Sally Yates—the government describes to the FISA court its “Source #1,” aka Christopher Steele. It is done in a footnote on page 15: “Source #1 [redacted] and has been an FBI source since [redacted]. Source #1’s reporting has been corroborated and used in criminal proceedings and the FBI assesses source #1 to be reliable. Source #1 has been compensated [redacted] by the FBI and the FBI is unaware of any derogatory information pertaining to Source #1”
Come January 2017 is was time to renew the FISA warrant, which meant the filing of another “verified application,” again signed off on by Comey and Yates. The footnote describing Source #1 is still there, but it has changed. The footnote reads “Source #1 [redacted] has been an FBI source since [redacted]. Source #1 has been compensated [redacted] by the FBI. [redacted] in or about October 2016, the FBI suspended its relationship with Source #1 due to Source #1’s unauthorized disclosure of information to the press.”
If the footnote had ended there, it would perhaps have been unobjectionable—a straightforward statement of fact that the court could have assessed for what it was worth. But the government was still trying to prop Steele up, even though the FBI, in good conscience, had already let him go: “Notwithstanding the suspension of its relationship with Source #1, the FBI assesses Source #1 to be reliable as previous reporting from Source #1 has been corroborated and used in criminal proceedings.” (By this, the government wasn’t claiming corroboration of the dossier but of reporting Steele did on an earlier case.) The footnote goes on: “Moreover, the FBI notes that the incident that led to the FBI suspending its relationship with Source #1 occurred after Source #1 provided the reporting that is described herein.” In other words, though Steele broke the FBI’s rules, the bureau was still willing to credit everything he said before he was caught going behind their backs.
The FISA documents suggest that Steele didn’t just make an “unauthorized disclosure of information to the press,” he may have lied to the FBI about it. According to the government’s own FISA application, “Source #1 [Steele] told the FBI that he/she only provided this information to the business associate [Glenn Simpson] and the FBI.” When, in fact, more than a month before the initial FISA application was made, Steele had already started talking to the press.
How strict could the FBI be with its fallen source given how extensively it relied on his claims? Especially since information Steele gave to the press is used in the FISA application as corroboration for Steele’s information. The FISA applications—at least what is unredacted in them—rely heavily on two sources for the accusations against Page: 1) Christopher Steele, and 2) a “September 23, 2016 News Article.” We now know quite definitively—the author of the article, Michael Isikoff, has publicly admitted who his source was—that the article was based on information given to Isikoff by Steele. In the original article, the source is not named, but is described as a “well-placed Western intelligence source.”
In the FISA applications, the bureau cites a news item that matched Steele’s story in remarkable detail, an article that attributes the information to an anonymous source described in a way that matches Steele. And yet the FBI says in a footnote on Page 23 of the original October 2016 FISA application, that Steele is not the well-placed Western intelligence source: “The FBI does not believe that Source #1 directly provided this information to the press.”
Further, Steele was meeting with other media outlets. In late September 2016—a month before the initial FISA warrant application—Steele briefed the New York Times, the Washington Post, Yahoo News, the New Yorker, and CNN. He kept it up throughout October: It was a Skype interview with Mother Jones at the end of that month that finally got Steele in trouble with the bureau.
It’s always possible that there are more sources and more information in the documents, which have been heavily obscured by redaction. For now, the FISA warrant critics will claim, as Senate Judiciary Committee Chairman Chuck Grassley has, that the FBI tried “to shield Mr. Steele’s credibility on which it still relied for the renewal request.” FISA warrant supporters will point out that the FBI fired Steele as a source and relayed that fact to the court.
Amid this ongoing argument, the casual observer may have noticed that Carter Page is still out and about. Perhaps prosecutors are merely biding their time and will swoop down on him in due course. Page, for his part, claims he has been the victim of “severe election fraud in the form of disinformation, suppression of dissent, hate crimes and other extensive abuses led by members of [Candidate #2’s] campaign and their political allies.” Or so says a letter Page sent in February 2017 to the Department of Justice and quoted in the last FISA warrant renewal. Even though the source for the assertion was Page, it should be noted that the government did include mention of “Candidate #2” in that FISA application.
President Trump has asserted, in typical fashion, the applications are somehow grounds to “drop the discredited Mueller Witch Hunt now!”
But the FISA documents do not answer whether the FBI and DoJ were justified in pursuing surveillance on Carter Page. At the very least, we would need to see the documents without redactions.
